Citation Nr: 18153503 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 18-48 356 DATE: November 28, 2018 ORDER 1. An initial compensable rating for bilateral hearing loss is denied. 2. Extension of the temporary total evaluation for January 2014 back surgery beyond March 31, 2014 is denied.   FINDINGS OF FACT 1. The Veteran’s hearing loss has been manifested by no worse than level I hearing loss in both ears. 2. The Veteran’s need for convalescence following January 2014 back surgery ended prior to April 1, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for an extension of a temporary total rating for January 2014 back surgery beyond March 31, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from March 1960 to September 1960, with subsequent periods of active duty for training and inactive duty for training ending in September 2000. The case is on appeal from February 2017 and June 2018 rating decisions. The Board notes that the Veteran discussed a right-hand disorder, back scars, and posttraumatic stress disorder (PTSD) in addition to his hearing loss in the October 2018 VA Form 9. However, the Board denied reopening a claim of service connection for a right-hand disorder in January 2018 and a compensable rating for back scars in June 2018. In addition, a January 2018 rating decision denied service connection for PTSD. The Veteran has filed additional correspondence addressing his PTSD claim. See Veteran’s correspondence and VA-Form 9 received in October 2018. The matter is referred to the RO for review and any action deemed necessary. Nonetheless, these issues are not presently before the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an initial compensable rating for hearing loss. Rating Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. 38 C.F.R. § 4.86(a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Facts and Analysis The Veteran contends that he should have an initial compensable rating for his service-connected bilateral hearing loss. The Veteran’s private treatment records include audiologic examinations conducted in January 2015 and February 2016. While the January 2015 and February 2016 test results appear to include speech discrimination testing, it is unclear whether the Maryland CNC testing was used to determine the scores. Therefore, because such testing does not show an exceptional pattern of hearing impairment pursuant to 38 C.F.R. § 4.86, it cannot be used to evaluate the severity of the Veteran’s hearing loss in the absence of Maryland CNC speech discrimination scores. 38 C.F.R. § 4.85. Thereafter, the Veteran was afforded an audiological examination in regard to this claim in May 2018. During the examination, the Veteran reported that he frequently needs people to repeat themselves for him to understand them. The examiner reported the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 AVG. RIGHT 25 30 35 50 35 LEFT 25 35 55 65 45 The average pure tone threshold was 35 in the right ear and 45 in the left ear. Speech discrimination revealed scores of 100 percent for both his right and left ears. The results correspond to level I hearing loss in the Veteran’s right and left ears. When combined, the results reflect a noncompensable disability evaluation for the Veteran’s hearing loss. 38 C.F.R. § 4.85. In addition, the findings do not show an exceptional pattern of hearing impairment and, thus, 38 C.F.R. § 4.86 is not applicable. 38 C.F.R. §§ 4.85, 4.86, DC 6100. The Board finds a compensable rating for this disability is not warranted at any point during the appeal. Although the Veteran contends that his hearing loss should be rated at a compensable level, the applicable mechanical hearing testing of record shows that his hearing loss is correctly evaluated as noncompensably disabling. Additionally, the functional effects of the hearing loss reported by the Veteran are contemplated by the hearing loss rating schedule. The Board has considered the benefit-of-the-doubt rule. However, because the preponderance of the evidence is against the Veteran’s claim for a compensable rating for hearing loss, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial compensable rating for hearing loss is not warranted. 2. Entitlement to an extension of the temporary total evaluation for a January 2014 back surgery beyond March 31, 2014. Legal Criteria Temporary total disability rating will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted under 38 C.F.R. § 4.30(a) for treatment of a service-connected disability, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.30(a), a temporary total rating will be assigned if the hospital or outpatient treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with respect to postoperative residuals such as incompletely healed surgical wounds, stumps and recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Id. Facts and Analysis The Veteran has been granted a temporary total evaluation for January 2014 back surgery from January 21, 2014 to March 31, 2014. He is seeking an extension of this total evaluation beyond March 31, 2014. The Veteran’s private treatment records reflect that he underwent back surgery on January 21, 2014. Thereafter, in February 2014, a private physician found that the Veteran was doing much better, his pain was improving, and that he should begin physical therapy in two weeks. During private treatment later in February 2014, the Veteran reported his back continued to improve and his pain was mild. He started advised to undergo physical therapy for four weeks. Following physical therapy for the Veteran’s back, a March 28, 2014 private treatment record shows that the Veteran reported feeling much better and experiencing little or no back pain. He also reported he was doing better at home. During this treatment the Veteran instead focused on unrelated bilateral knee pain and restricted range of movement. (Continued on the next page)   The Board finds that the criteria for an extension of a temporary total rating for January 2014 back surgery beyond March 31, 2014 have not been met. In this regard, the Veteran’s treatment records show that the need for convalescence following the January 2014 back surgery ended prior to April 1, 2014. A February 2014 treatment records show that the Veteran reported feeling much better and experiencing minimal back symptoms. These records reflect that the Veteran’s back condition improved significantly prior to March 31, 2014 to the extent that he was focused on receiving treatment for an unrelated medical condition. In addition, the medical records do not show, and the Veteran has not reported, that he experienced a need for convalescence or any applicable postoperative residuals beyond March 31, 2014. See 38 C.F.R. § 4.30. As the evidence does not show that a temporary total evaluation for back surgery is warranted beyond March 31, 2014, there is no doubt to be resolved in this matter and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel